8.  The applicant was born in 1965 and lives in Flushing. The applicant foundation, also based in Flushing, operates a mosque in Flushing serving Muslim believers belonging to the local Moroccan community.
9.  On 2 December 1999 the applicant foundation applied, via the District Employment Services Authority (Regionaal Bureau voor de Arbeidsvoorziening), for a work permit (tewerkstellingsvergunning) under the Foreign Nationals (Employment) Act (Wet Arbeid Vreemdelingen), which would allow it to appoint the applicant as its imam.
10.  On 30 October 2000 the General Directors of the Employment Services Authority (Algemene Directie voor de Arbeidsvoorzieningen), to whom the application had been forwarded, gave a decision refusing such a permit. It was considered that since the job vacancy had not been reported, it had to be assumed that there was an adequate supply of priority labour (i.e. nationals of member States of the European Union or the European Economic Area, or others with equivalent status as regards residence and the right to work, possessing the requisite qualifications). In addition, it had not been shown that the applicant would earn the statutory minimum wage. Furthermore, it had not been demonstrated that the applicant foundation had made sufficient efforts to fill the position with priority labour available on the labour market, for example by advertising the position in the local and national press.
11.  The applicants lodged an objection with the General Directors of the Employment Services Authority on 29 November 2000. It was stated, among other things, that the applicant had already been admitted to the Netherlands in November 1998, so that section 8 (1) (d) of the Foreign Nationals (Employment) Act did not apply to him, and that it was well known that there was a severe shortage of imams in the Netherlands.
12.  The General Directors of the Employment Services Authority gave their decision on 19 September 2001. It was found that the applicant foundation had not investigated the labour market at the time when the application for a work permit was made, and that moreover the vacant position had not been reported to the Employment Services Organisation (Arbeidsvoorzieningsorganisatie) at least five weeks before the date of the application. The applicant had previously been admitted to the country to work as a teacher of religion, not as an imam, and although the applicants had submitted a draft contract of employment naming a sufficient monthly wage it was not stated that this wage was linked to the statutory index. The information supplied by the applicants as to the alleged shortage of suitably qualified persons on the Netherlands and European Union labour markets was not persuasive. Finally, two training establishments for imams existed in the Netherlands; it had not been shown that the applicant foundation had tried to recruit its imam from one of these.
13.  The applicant appealed to the Regional Court (arrondissementsrechtbank) of The Hague on 16 October 2001 and submitted his grounds of appeal on 29 November 2001. So did the applicant foundation, as a “third party” with an interest in the decision. It was stated, among other things, that already in September or October 1999 the applicant foundation had made unsuccessful attempts to find a suitable imam through the Labour Exchange (Arbeidsbureau). Given the unreasonable length of time taken up by the pending proceedings (by this time, nearly two years already) and in the absence of any other candidate for the position, the applicant had in the meantime started work as the imam of the applicant foundation's mosque, to the satisfaction of all concerned. Moreover, the applicants submitted that, at the time the decision on the objection was taken, a policy had been in force of not applying the requirement relating to the reporting of a vacancy for a minister of religion; a failure on the part of the applicant foundation – if failure there was – ought therefore not to have been held against it. It was also argued that the decision of 19 September 2001 violated Article 9 of the Convention.
14.  Having held a hearing on 30 August 2002, the Regional Court gave its decision on 11 October 2002. The Regional Court repeated the findings of the General Directors of the Employment Services Authority – which had meanwhile been replaced by the Central Organisation for Work and Income (Centrale Organisatie voor Werk en Inkomen) – that the applicant foundation had not sufficiently investigated the availability of suitable alternative candidates, that the vacancy had not been reported to the Employment Services Organisation at least five weeks before a work permit was applied for, and – notwithstanding the submission of a bank statement and proof of payment in kind (viz. free housing) – that it had not been demonstrated that the applicant was entitled to the statutory minimum wage. Whether or not the failure to report the vacancy could have been used as an independent ground for the refusal of the work permit, the fact remained that that failure contributed to the conclusion that the applicant foundation had in any event not sufficiently investigated the availability of alternative candidates. As to Article 9 of the Convention, the Regional Court found that any interference that might have occurred was prescribed by law and necessary in a democratic society for the protection of public order – an expression construed by the Regional Court as encompassing the labour market.
15.  The applicant and the applicant foundation each lodged appeals with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 27 November 2002. They alleged that the Regional Court had erred in finding that the vacancy for a qualified imam had not been duly reported to the Employment Services Organisation. Prior to the application for a work permit, efforts had been made to find an imam with residence rights through the informal circuit, as was customary in the case of Moroccan imams. It was only after the Labour Exchange had failed to produce a suitable candidate that the applicant's name had been put forward and a work permit applied for. The applicant was being paid the statutory after-tax minimum wage, but the tax authorities were refusing to accept payment of the various withholding taxes and social-security contributions. Of the two institutions in the Netherlands which trained imams, one had ceased its activities because it was not recognised by the muslim community in the Netherlands and the other did not train imams capable of functioning within Moroccan religious communities. Finally, the applicant foundation invoked Article 9 of the Convention.
16.  Having held a hearing on 17 February 2003, the Administrative Jurisdiction Division gave its decision on 28 February 2003. The applicants were held not to have corroborated with documentary evidence their allegation that the applicant foundation had sought to find a suitably qualified imam prior to lodging the application for a work permit, nor had they shown sufficient diligence in trying to find priority labour available on the labour market to fill the vacancy. The applicants' statement that it would have been pointless for the applicant foundation to approach the one remaining training institute for imams operating in the Netherlands was also found to be unsubstantiated. Article 9 of the Convention could not be construed as entitling a religious community to employ as a teacher and minister of religion a foreign national who did not meet statutory requirements set for the purpose of preserving peace and public order.
17.  Following the issuing of an expulsion order, the applicant returned to Morocco on 4 August 2005.
18.  In a letter of 21 February 2007 the Government informed the Court that on 27 January 2006 the applicant foundation had lodged a new application for a work permit on behalf of the applicant. This application had been successful and on 3 March 2006 a work permit had been issued, valid until 6 March 2009, as the applicant foundation had established that the conditions of sections 8 and 9 of the Foreign Nationals (Employment) Act had been fulfilled: the applicant foundation had showed evidence of having made sufficient efforts to fill the position with priority labour and of having reported the availability of the position to the Employment Services Organisation at least five weeks before the new application for the work permit was lodged, and had submitted an employment contract showing that the applicant's wages met the minimum wage requirement. In addition, on 16 November 2006 the applicant had been granted a temporary residence permit, also valid until 6 March 2009.